DV Victim Refuses to Cooperate, Legal Considerations
Constitutional Right to Be Left Alone: Many victims will come right out and tell you "I just want to be left alone." Well, I've got good news for such folks. The Florida Constitution contains just such a provision. It is found in Article 1, Section 23, entitled "Right to Privacy" and it here it is, in its entirety: Every natural person has the right to be let alone and free form governmental intrusion into the person's private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law. So, we lawyers need to have alleged victims assert these rights in their declination of prosecution and drop charge affidavit.
Recanted Testimony: There's a long line of cases that make it impossible for the State to prove their case if the victim has sufficiently recanted. Basically, the initial victim statement becomes inconsistent with the current statement, and the Florida "supreme court has previously held that a prior inconsistent statement is, by itself, insufficient to prove guilt beyond a reasonable doubt," noting that "the risk of convicting an innocent accused is simply too great when the conviction is based entirely on prior inconsistent statements." State v. Moore, 485 So.2d 1279 (Fla. 1986). Yes, a victim could run into perjury problems, or filing a false police report problems--but that's why we have lawyers, to avoid such problems. Having a victim honestly recant and avoid criminal legal problems is possible, with our legal help....
Recanting at Trial: Sometimes, the victim doesn't recant until testifying at trial. This happened in Santiago v. State, where convictions for sexual battery and attempted murder were reverse because the convictions were based on "the original version of the incident given to the police by the victim . . . immediately after the incident", which the victim recanted at trial. 652 So. 2d 485 (Fla. 5th DCA 1995).
"I Don't Remember What Happen": For an analysis of the all too common "I don't remember what happened" scenario, see J.A.S. v. State 920 So. 2d 759 (Fla. 2d DCA 2006), holding that the State failed to prove a battery when the officer testified that the victim told the officer that the defendant had battered him but that hearsay was not properly admitted as an excited utterance and the victim testified that he did not remember what happened.
Motion in Limine: Of course, the whole idea of filing a Declination & Drop Charge Affidavit is to avoid the shenanigans found in J.A.S. and Santiago, above. I sometimes file a Motion in Limine to prevent the State from calling the victim as a witness, and this motion puts the state on notice that their "victim" has recanted. The State has no right to call a witness when their motive is to elicit the prior recanted statement. Again, to make this work, you've got to put the State on notice, in writing, that their so-called victim has recanted.
911 Calls: These 911 calls are coming into evidence because they're not (typically) testimonial in nature, so the State gets around Crawford. The problem is, what does the 911 call really prove? The alleged victim may have only given her name--not her date of birth, etc. So, how does the State prove they have the "right" victim just based upon a phone call? See Baker v. State for a domestic battery overturned because the 911 call didn't provide enough evidence to convict. 959 So.2d 1250 (Fla. 2d DCA 2007) Sure, the victim in Baker stated that her boyfriend just "bit" her, but the court wasn't convinced this was "against her will."
Without a Victim, How Does the State Prove Identity? the testifying police officer has no personal knowledge of the victim's identity, so the cop telling the jury who the victim "is" would be hearsay. See Holborough v. State, 103 So.3d 221, where the cops witnessed the defendant beating a woman, its rare to have the perfect cop witness to a domestic battery, right? But, the victim didn't appear at trial and the only way they could identify the victim was via the cop's testimony as to what he read off the victim's driver's license. That was hearsay, conviction overturned. But be careful here, some prosecutors are attempting to sneak identity in the back door via self-authenticating DL records. Several judges have fallen for this charade, many have not. Some have even laughed out loud (the appropriate response, I think). Just be prepared.
Recanted Testimony--Notary as a witness: If a victim does not appear at trial, but has recanted, how do you get the new statement into evidence? Well, you can call the person who notarized the recanted statement, and she can tell the jury that the victim told her the statement was completely accurate and true. Notaries make good witnesses.